(Application no. 18353/03)
19 May 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kulikowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 April 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. The applicant's pre trial detention
2. Criminal proceedings against the applicant
3. Proceedings concerning the lodging of a cassation appeal against the judgment of the appellate court
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Detention on remand
2. Cassation appeal
“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).”
3. Legal assistance for the purposes of lodging a cassation appeal
“A defence counsel appointed under the legal aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.”
4. Detainees' correspondence and contacts with family
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as those secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
“(...) detainee's correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
This provision further provides that a detainee is allowed to receive visitors, provided that he has obtained permission from the investigating prosecutor (at the investigative stage) or from the trial court (once the trial has begun).
31. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force. Paragraph 36 of the Rules provides:
“The detainee's correspondence ... is dispatched through the intermediary of the authority at whose disposal he remains.”
III. RELEVANT NON-CONVENTION MATERIAL
32. In 1990, the UN adopted the Basic Principles on the Role of Lawyers (the Basic Principles). They provide, in particular:
“13. The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
“4. No litigant should be prevented from being assisted by a lawyer. The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided. Where, having regard to the nature of the matter involved, it would be desirable, in order to facilitate access to justice, for an individual to put his own case before the courts, then representation by a lawyer should not be compulsory.”
“Recalling that in addition to the right of access to the law and to justice provided for in Article 6 of the European Convention on Human Rights, the other provisions of the Convention and particularly Articles 2, 3 and 8 are equally applicable to the very poor, as are the other legal instruments of the Council of Europe such as the European Social Charter;
Considering that this recommendation is intended to improve, especially with regard to the very poor, existing legal advice and legal aid systems, and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed.
Recommends that the governments of member states:
1. Facilitate access to the law for the very poor (“the right to the protection of the law”) by: ...
b. promoting legal advice services for the very poor; ...
3. Facilitate effective access to the courts for the very poor, especially by the following means:
c. recognising the right to be assisted by an appropriate counsel, as far as possible of one's choice, who will receive adequate remuneration;
e. simplifying the procedure for granting legal aid to the very poor, [...]”
“The Committee of Ministers, under the terms of Article 15.b of the Statue of the Council of Europe, [...]
Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms; [...]
Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.
1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights.
1. All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers,
2. Lawyers should be encouraged to provide legal services to persons in an economically weak position.
3. Governments of member States should, where appropriate to ensure effective access to justice, ensure that effective legal services are available to persons in an economically weak position, in particular to persons deprived of their liberty.
4. Lawyers' duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds.”
IV. THE RESOLUTION OF THE COUNCIL OF EUROPE'S COMMITTEE OF MINISTERS
A. The Committee of Ministers
B. The Council of Europe's Commissioner for Human Rights
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
1. Period to be taken into consideration
2. The Court's assessment
There has accordingly been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH ARTICLE 6 § 3 (c ) OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
3. Everyone charged with a criminal offence has the following minimum rights: ...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”
1. The applicant's submissions
2. Principles established by the Court's case-law
a) The scope of the State's liability ratione personae under the Convention
b) Access to court
In discharging its obligation to provide parties to criminal proceedings with legal aid, when this is provided for by domestic law, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (see R.D. v. Poland, nos. 29692/96 and 34612/97, § 44, 18 December 2001).
3. Application of the principles to the facts of the case
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his ... family life ... and correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
V. APPLICATION OF ARTICLE 46 OF THE CONVENTION
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
“60. The Court thus concludes, as the Committee of Ministers did, that for many years, at least as recently as in 2007, numerous cases have demonstrated that the excessive length of pre-trial detention in Poland reveals a structural problem consisting of “a practice that is incompatible with the Convention” (see mutatis mutandis Broniowski v. Poland [GC], no. 31443/96, §§ 190-191, ECHR 2004-V; Scordino v. Italy (no. 1) [GC], no. 36813)”.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Polish zlotys at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 1,150 (one thousand one hundred and fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 19 May 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinions of Judges Bonello and Mijović are annexed to this judgment.
CONCURRING OPINION OF JUDGE BONELLO
CONCURRING OPINION OF JUDGE MIJOVIĆ
While I fully support Judge Bonello's arguments expressed in his concurring opinion, I feel compelled to emphasise a few further points since I see the problem of the refusal of lawyers appointed under the legal aid scheme to represent legally-aided persons on the ground that a claim has no reasonable prospects of success as the general one. Additionally, I do not see this problem as related exclusively to criminal proceedings. It also concerns both civil1 and administrative ones, although the facts of this case do not allow me to extend my opinion to such proceedings.
Proceedings concerning the lodging of a cassation appeal against the judgment of the appellate court in this case started with the Katowice Court of Appeal's appointment of a legal-aid lawyer for the purposes of the cassation proceedings. The letter containing both the legal-aid lawyer's decision not to lodge a cassation appeal and the court's decision not to appoint another legal-aid lawyer was served on the applicant only two days before the time-limit for lodging a cassation appeal was to expire. The main reason for the Chamber to find a violation of Article 6, in accordance with the Court's case-law2, was “that the relevant procedural framework available under Polish law as from February 2002 was not applied in the applicant's case in such a manner as to afford him a realistic opportunity of taking further steps to have his cassation appeal lodged with and argued before the Supreme Court and to have thereby his access to a court secured in an effective manner”. However, in my view, the refusal by a lawyer appointed under a legal-aid scheme to prepare grounds of appeal for consideration by the Supreme Court, as well as the requirements for lodging a cassation appeal, are issues that represent a breach of the applicant's right of access to the court and reflect the existence of a serious problem in the legal-aid scheme set up by the Polish legislation in general.
While there are no doubts that it is legitimate for the State to determine that legal aid should be available for some types of proceedings and not for others, the limitations applied must not restrict the access left to the individual in such a way that the very essence of the rights guaranteed by Article 6 is impaired. The applicant in this case complained that as a result of the legal-aid lawyer's refusal to lodge a cassation appeal he had been denied effective access to the Supreme Court. The provisions of Article 6 stipulate that everyone charged with a criminal offence has, among other rights, a right “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
As far as I understand the practice of the Supreme Court, once the legal-aid lawyer refuses to lodge a cassation appeal the court could assign a new legal-aid lawyer only if it had been shown that the first lawyer had been negligent in his task of assessing whether a cassation appeal had any prospect of success. The negligence of the first legal-aid lawyer, additionally, had to “be shown” in separate civil proceedings against the lawyer for compensation, the applicant being required to prove that the court should, in the circumstances, have assigned a new legal-aid lawyer. To my mind, this part of the legal-aid scheme is simply too far removed from what I would consider sufficient to ensure effective access to the court.
While it is true that the right to a court, of which the right of access constitutes one aspect1 is not absolute but may be subject to limitations, and that the States in these matters surely enjoy a certain margin of appreciation2, these limitations are not compatible with Article 6 provisions if there is no legitimate aim at issue and if there is a lack of proportionality between the means employed and the aim sought to be achieved3. The Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with.4
These principles of the Court's case-law are correctly stated in the Chamber's judgment. Nevertheless, in my opinion, they should have been further developed and taken a step further in order to criticise the conceptual confusion surrounding the domestic provisions governing the legal aid scheme, namely the fact that under the applicable domestic regulations the legal-aid lawyer is not obliged to prepare a written legal opinion on the prospects of success of the appeal and, moreover, the law does not set any standards as to the quality of the legal advice that has to be given to justify the lawyer's refusal to lodge the appeal.
Furthermore, I strongly believe that the decision whether a case offers reasonable prospects of success should not be taken by a legal-aid lawyer. I would stress in this connection that the right of access to the Supreme Court should be based on the idea that each and every individual should be granted the right to state his case before a last-instance jurisdiction if she or he considers that the law has been violated or misinterpreted by the lower courts. Giving a right to a legal-aid lawyer to decide on the fate of the case even before it is brought before the Supreme Court and without any written reasons for that decision, is, for me, arbitrary, even, as Judge Bonello pointed out, capricious. Of course, a legal aid lawyer's opinion should matter. However, I see legal-aid more in terms of free legal representation than legal advice or, even worse, only the legal (and very personal) attitude of an individual having no judicial status. Additionally, as a Judge, I find the formula “in a legal-aid lawyer's opinion, a cassation appeal lacked prospects of success” not only arbitrary, but offensive and prejudicial, especially bearing in mind the fact that the Court of Appeal in this case relied on this “opinion” by refusing the applicant's requests for the appointment of a new legal-aid lawyer and thereby finally preventing the applicant from having his case decided by the highest judicial authority. That is what I see as the essence of this problem and that is why I think that the European Court's case-law should have dealt with this situation more carefully instead of finding a violation of Article 6 for the sole reason that the time-limits set by the Polish legislation had not been respected.
1 At § 16.
2 At § 54: “A lawyer, even if officially appointed, cannot be considered to be an organ of the state”.
3 R.D. v. Poland, 18 December, 2001.
4 Sialkowska v. Poland; Staroszczyk v. Poland, 22 March 2007.
1 At § 63.
1 Article 30.
1 There are more than 120 such cases pending before the European Court of Human Rights
2 Siałkowska v. Poland, no. 8932/05, 22 March 2007
1 Golder v. the United Kingdom, judgment of 21 February 1975
2 Vasilakis v. Greece, judgment of 17 January 2008
3 Ashingdane v. the United Kingdom, judgment of 28 May 1985; Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998
4 Staroszczyk v. Poland, judgment of 22 March 2007